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Pennsylvania Bar Institute Asserting or Defending Back Pay Claims* Current information as of September 30, 2005: Law Office of Richard T. Seymour, I am grateful to my former firm, Lieff, Cabraser, Heimann & Bernstein LLP, for the Table of Contents
Table of Cases Albemarle Paper Co. v. Moody,
defendant’s failure to pay pension benefits pursuant to an oral settlement agreement by ordering him reinstated for one day to enable him to take advantage of a more generous change in the plan, which will result in his getting more money than if he had been paid pursuant to the agreement. The court held that the defendant was equitably estopped to rely on the parol evidence rule by its attorney’s representation to plaintiff’s counsel that there was no need for a pension benefits provision in the settlement agreement because the plaintiff already had immediate access to his pension benefits. In reliance on the representation, plaintiff’s counsel “reasonably and detrimentally relied on” the statement, which was not accurate. The plaintiff was not awarded the lost pension benefits, however, because the lower court ordered him reinstated for one day so that he could receive the benefits of an intervening change in the plan, which resulted in his receiving more than he would have received if he had received the lost benefits on time. Id. at 700–01.
reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” The employer’s good faith is not an acceptable reason for the denial of back pay.
(Footnotes omitted.)
the items which should be included in back pay. Adjustment to the pension plan for members of the class who retired during this time should also be considered on remand.” Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 263, 7 FEP Cases 1115 (5th Cir. 1974).
Stamps, etc., are not included in “interim earnings” and are not used as partial offsets to an award of back pay under the National Labor Relations Act.
undocumented alien who had never been authorized to work in the United States. Castro testified that he had used a friend’s birth certificate fraudulently to obtain a Social Security card, and a California driver’s license, and he had used these to obtain employment. There was no evidence that he had applied or intended to apply for legal authorization to work in the United States. The Court held that the legal landscape of prior decisions was altered by enactment of the Immigration Reform and Control Act of 1986. Speaking of the fact that “it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies,” such as by the employee’s tender of fraudulent documentation or the employer’s knowing hiring of an undocumented alien, the Court stated:
The Court pointed out that Castro could not satisfy his duty to mitigate his earnings loss without committing further violations of IRCA. Justice Breyer, joined by Justices Stevens, Souterm and Ginsburg, dissented.
It is not clear that this decision would bar minimum-wage and overtime awards under the FLSA for work already performed.
whether Castro could have rehabilitated himself for purposes of a back pay award by applying for such authorization.
actually performed, and/or have for this reason barred discovery into the plaintiff’s immigration status. Flores v. Amigon, 233 F. Supp. 2d 462, 463–65 (E.D. N.Y. 2002); Zeng Liu v. Donna Karan Int’l, Inc., 207 F.Supp.2d 191, 192–93 (S.D. N.Y. 2002); Singh v. Jutla & C.D. & R’s Oil,
case in which the jury found for the plaintiff on sexual harassment but found for the defendant on the issue of retaliatory discharge, and in which the plaintiff never presented a claim of constructive discharge. The plaintiff had resigned because of the company’s failure to address her complaints, and then thought better of it and tried to withdraw her resignation. The defendant held her to her resignation. The lower court had awarded back pay and front pay on the theory that the plaintiff’s resignation/termination would not have happened but for the harassment. The court of appeals held that this approach improperly ignored the distinction between harassment and termination claims. “A victim of discrimination that leaves his or her employment as a result of the discrimination must show either an actual or constructive discharge in order to receive the equitable remedy of reinstatement, or back and front pay in lieu of reinstatement. In the absence of such a showing, a plaintiff’s exclusive remedies are those set forth in 42 U.S.C. § 1981a.” Id. at 659. The court stated:
Id. at 660–61.
affirmed the denial of back pay because the plaintiffs had resigned from the jobs, and the jury had rejected their constructive-discharge claim. The court rejected the plaintiffs’ argument that 42 U.S.C. § 1981a now allows the recovery of back and front pay even if they had not been constructively discharged. It held that, under the statute, back pay is and front pay are governed exclusively by § 706(g) of Title VII.
remanded the dismissal of the EEOC’s intentional-discrimination claim. The court stated that “in determining pattern or practice liability, the government is not required to prove that any particular employee was a victim of the pattern or practice; it need only establish a prima facie case that such a policy existed.” Id. at 1287 (footnote omitted). It stated that proof of such a pattern and practice creates a rebuttable presumption of discrimination and entitlement to relief. “The employer may overcome this presumption only with clear and convincing evidence that job decisions made when the discriminatory policy was in force were not made in pursuit of that policy.” Id. at 1287 n.22. Judge Hull concurred in part and dissented in part. Id. at 1287–97.
defendant’s contention that plaintiff’s back pay award should have been limited to when a higher-paid male worked alongside her, because the court had approved the use of successor comparators
1996, and before. The plaintiff had been fired in January 1994. The trial court had held that the question whether the plaintiff would have survived the April 1, 1996, RIF, if she had still been working on that date, was too speculative to support an award of back pay for the period after April 1, 1996. The court held that the evidence was sufficient to support a jury inference that the plaintiff would have survived the RIF. Chapter 15 (Comparators) described the court’s conclusion that the jury could have found that the plaintiff was better qualified than Dvorachek who had been retained when the plaintiff was fired. The fact that Dvorachek received a pay- grade promotion in surviving the RIF in 1996 was not dispositive, because “the record is silent as to whether the only remaining positions were for that higher pay grade.” Id. at 363. The court continued: “Travelers may argue to the jury that Banks would not have been retained in April 1996 for example, because her skills would not have rendered her as well suited as Dvorachek to fill any of the remaining positions. But we do not see the evidence in this case commanding such an inference in Travelers’ favor.” Id. at 363–64. While the case needed to be retried on back pay, the court held that there was no reason to retry liability, because the back pay issue was distinct and separable from the issues of liability. Id. at 364 n.4. The court stated that a plaintiff is generally entitled to back pay from the date of discharge until the date of judgment, but the jury is not able to anticipate the date of judgment. “Accordingly, any lag time between the jury’s verdict and the district court’s ultimate judgment ordinarily should be remedied by the court, in the form of a pro rata increase of the back pay award.” Id. at 364.
Cir.), reinstated in relevant part, 182 F.3d 333, 80 FEP Cases 704 (5th Cir. 1999), affirmed the back pay judgment based on the jury verdict. The court rejected the argument of the Title VII and § 1981 defendant that the plaintiff’s back pay period should have ended when she quit her subsequent employment. She testified that when she obtained the new job, she moved to her in- laws’ residence in a lower-income area because of her reduced earnings. When she was sexually assaulted at her new residence, she resigned. She sought $34,000 in lost earnings, and the jury awarded $19,000. The defendant argued that her lost earnings should be no more than $10,000, reflecting its contended end of the back pay period caused by the plaintiff’s asserted failure to mitigate her losses. The plaintiff testified as to her efforts to obtain a job after her resignation from the interim employer. The court held that mitigation is a question of fact turning on “reasonableness, similarity, and diligence,” and that a reasonable jury could have found that the plaintiff had satisfied her duty of mitigation. Id.
violation of a consent decree delaying his promotion, because of the plaintiff’s laches in failing for a decade to enquire into the existence of vacancies in the position for which he was entitled to priority consideration. The court held that one of the purposes of a period of limitations is to enable the defendant to cap its liability. Because this purpose, unlike the staleness of evidence, does not affect the accuracy of the factfinding process, the court suggested that it supported the truncation, rather than the elimination, of liability. Id. at 696. The court held that the application of laches to end the back pay period is not rendered inappropriate by the plaintiff’s argument that she had a full-time job throughout and thus satisfied her duty of mitigation. The court explained:
Id. at 697–98 (citations omitted).
plaintiff, who had been fired from her temporary position on June 19, 1995. The court rejected the defendant’s argument that the plaintiff would have been laid off along with other temporary employees in December 1995 because of the cyclical nature of its business. The court stated, regardless of whether the plaintiff would have been hired as a permanent employee, the defendant’s re-hiring of former temporary workers in May or in the last half of each year belied its contention. The court stated that the modest amount of back pay awarded was not undercut by the company’s argument. Moreover, the argument “was not properly preserved because Waterloo did not include in the record on appeal whatever portion of the trial record, such as Forshee’s damage exhibits or closing argument, would permit us to infer how the jury might have calculated this portion of its damage award.” Id. at 531.
period in September 1995, because the plaintiff voluntarily withdrew from the workforce then to care for her young child, and this decision was unaffected by the defendant’s discrimination.
relief without such benefits did not make him whole. Such benefits are compensation for past economic loss, not prospective relief. The court held that there are two ways to provide the plaintiff with the appropriate relief. In addition to restoring his lost service and salary credits to his pension plan, “it is also possible to award money damages to compensate the plaintiff for the value of the pension benefits that were lost. This form of legal relief is proper for a jury to award.” Id. at 375 (citation omitted). The court held that the record was unclear as to whether the jury’s award of $1,427,200 in damages included the lost pension benefits, and remanded the issue so that the lower court could address it and either award the relief or withhold it so as to avoid duplicative relief. While the plaintiff did not attempt to quantify his lost benefits to the jury, the evidence presented to the jury contained references to pension provisions, and plaintiff’s closing argument referred to pension benefits. The lower court had instructed the jury that the plaintiff’s “economic loss” should be the measure of damages, and had referred four times in its instructions to the plaintiff’s right to recover salary and benefits, or pension benefits, or financial losses. Id. Judge Hall concurred in part and dissented in part. Id. at 376–77.
plaintiff, who had been fired at the age of 53, about two years before the plaintiff’s interest in the defendant’s Supplemental Executive Pension Plan and new stock options vested. The judgment included $4.4 million for unrealized stock option appreciation, including both the options that had not yet vested and the difference in the value of the already-vested options at the time of plaintiff’s termination, when he exercised them and sold the stock to pay his IRS bills, and their value if he had been able to execute his plan of retiring at 55, exercising them, and selling the stock. The court discussed the importance of stock options in executive compensation, id. at 1243, and held that stock option appreciation is compensable under the ADEA, but that it was not subject to liquidated damages. Moreover, the court upheld the inclusion in the judgment of the $3 million difference between the value of the options in 1993, when the plaintiff was forced to exercise them, and the value the options would have had if he had been able to exercise them two years later, as he had planned. The court rejected the defendant’s argument that this difference was compensatory damages not allowable under the ADEA:
Id. at 1244. The court rejected the defendant’s argument that the lower court erred in failing to instruct the jury on mitigation, and that mitigation required the plaintiff to hold onto his stock and hope that the market value would not decrease. The court observed that the defendant had consented to a proximate cause instruction in lieu of a mitigation instruction, so that the plain error rule applied. The court held that the lower court’s instruction on proximate cause sufficed under the plain error rule. Id. at 1244–45. The court also rejected the defendant’s argument that the award was too speculative, because the award was close to the amount calculated by plaintiff’s damages expert, Leslie Patten.
court rejected the defendant’s argument that the award improperly included fringe benefits such as the reduced cost of meals, health insurance coverage, and vacation pay. “This circuit repeatedly has held that such benefits should be recouped in a back pay award.” (Citation omitted.)
chance” method described hypothetically in Doll v. Brown, 75 F.3d 1200, 5 AD Cases 369 (7th Cir. 1996):
(2000), vacated and remanded the remedy the lower court had ordered after a finding that the City was in contempt of the Consent Decree by issuing unwarranted “Special Certifications” that allowed it to promote one additional black candidate to the rank of Sergeant, and one to the rank of Lieutenant. The court held that the lower court impermissibly ordered make-whole relief for all of the 35 bypassed officers on the promotional certificates. It held that “make-whole” relief should instead be limited to one promotion for each rank, from among the pools on the regular Certificates. Id. at 1299. The court approved the lower court’s decision to use a classwide approach, because the promotional process was highly subjective and there was no means to determine which of the 23 bypassed candidates for Sergeant, and which of the 12 bypassed candidates for Lieutenant, would have been promoted in the absence of the Special Certifications. “We have explained in the context of remedial backpay relief that a classwide remedy is appropriate when fashioning an individualized remedy would create a ‘quagmire of hypothetical judgment[s]’ as to which individuals, out of a large class, should receive remedial relief. . . . In endorsing this approach, we have recognized that the only other relief alternatives would be unpalatable: either (1) randomly selecting several individuals from a large class for full ‘make-whole’ relief, or (2) awarding no relief at all because specific individuals deserving of a ‘make-whole’ remedy could not be identified from a victim class.” Id. (citations omitted; some internal quotation marks omitted). The court stressed that equity for both sides is important. Id. at 1299–1300. The court held that the district court’s error was in treating each bypassed candidate as if he had been deprived of a 100% chance of promotion, whereas “each lieutenant candidate stood only a one in twenty-three (or four percent) chance of promotion, and each sergeant candidate stood only a one in twelve (or eight percent) chance of promotion.” Id. at 1300. The court held that a pro rata approach should be used, with the value of the promotion for each rank divided among the eligible pool for that rank. Id. at 1300–01. It stated that the district court’s approach was punitive in nature because of its excessiveness. Id. at 1301–02. Moreover, the sheer number of promotions “could radically restructure the City’s police force by creating many more lieutenants and sergeants than the City sought fit to create under its own promotion policies. The very magnitude of this remedy risks reshaping the Police Department in a variety of ways unforseen and unintended by the district court.” Id. at 1302. The court vacated the remedy and remanded the case for the entry of pro rata relief. Id.
426, 86 FEP Cases 1327 (6th Cir. 1999), cert. denied sub nom. Conover v. Fernald Environmental Restoration Management Corp., 530 U.S. 1242 (2000), reversed the judgment for ADEA plaintiff Skalka and remanded it for a remittitur or new trial on damages. The court stated that the district court should consider on remand whether the plaintiff’s receipt of early retirement benefits prior to the trial should be considered as payments from a collateral source not to be subtracted from the back pay award, or as interim earnings to be subtracted from the award.
plaintiff’s undifferentiated damages award, reducing the $500,000 verdict to zero. The court rejected an abuse-of-discretion standard of review because such a standard fails to take into account “the general policy considerations that form the basis of the collateral source rule,” and held that the decision is a “policy determination that should not be left to the individual discretion of each district court.” Id. at 433. The Sixth Circuit disagreed with the lower court’s evaluation of Sixth Circuit precedent on the collateral source rule as unclear, confusing, inconsistent, and contradictory. The court found its own precedent “reasonably consistent” in discrimination cases. Id. It stated the general rule: “Applying the collateral source rule in the employment discrimination context prevents the discriminatory employer from avoiding liability and experiencing a windfall, and also promotes the deterrence functions of discrimination statutes.” Id. at 434 (citation omitted). The court approved the test set out in Phillips v. Western Company of North America, 953 F.2d 923, 932 (5th Cir. 1992), for determining whether pension benefits are collateral source benefits:
Hamlin , id. at 435. The court stated that each of these factors favored the plaintiff. “The plan arises pursuant to the Michigan statute and a collective bargaining agreement. A disability pension under the plan is available to cover both work-related and non-work-related disabilities, payments are contingent upon length of service, and the only language contemplating the offsetting of other payments pertains specifically to workers’ compensation benefits stemming from the same injury.” Id. The court approved the first three of the four rules on which the district court relied: “‘First, employer defendants in employment discrimination cases are subject to the rule that tortfeasors should not benefit by way of offset from payments made to employees from collateral sources. Second, under the collateral source rule, payments from an entity that is separate and distinct from an employer generally should not be used to offset damage awards in Title VII and ADEA cases. Third, also under the collateral source rule, payments which employers incur pursuant to a State or Federal social policy, as opposed to an independent, voluntary obligation of the employer, should not offset damage awards in Title VII and ADEA cases.’” Id. The court disapproved the lower court’s fourth and final rule—that “‘any benefits that a plaintiff would not have earned had he or she continued working should be offset’”— because that “directly contradicts the first three rules.” Id. Judge Nelson concurred in the judgment. Id. at 439–41.
stated in dictum: “The purpose of the collateral source rule is ‘not to prevent the plaintiff from being overcompensated but rather to prevent the tortfeasor from paying twice.’ . . . In an employment case, if the employer is the source of the funds at issue, then the payments can be deducted from the award.” (Citation omitted.) The court stated that the lower courts have discretion whether or not to deduct collateral source benefits from a back pay award, and held that the trial court did not abuse its discretion in deducting the plaintiff’s Social Security disability benefits from his award. However, the benefits should be deducted only for the periods of time in which the plaintiff was able to work and is this able to receive back pay.
harassment plaintiff’s $603,928.37 front pay award (the present value) by the present value of disability benefits for which she might become eligible in the future. Recognizing the conflict among the Circuits, the court held that it was unnecessary to decide the legal question because the defendant had offered only speculation as to whether the plaintiff might receive such benefits in the future
defendant. The court held that the plaintiff was not judicially estopped from maintaining her ADA claim because of the representations she had made on her application for State disability benefits, but that the plaintiff could not retain her disability benefits while also receiving back pay. “Our ruling relieves Fredenburg of an untenable choice between disability benefits and an ADA claim . . . but it does not permit a double recovery based on inconsistent positions.” (Citation omitted.)
Environmental Restoration Management Corp., 530 U.S. 1242 (2000), reversed the judgment for ADEA plaintiff Skalka and remanded it for a remittitur or new trial on damages. The court held that the award of Skalka’s pension benefits must be reduced to present value
present value) to the Title VII sexual harassment plaintiff.
because the plaintiff testified that she would have received between $130,000 and $200,000 more in salary if she had been promoted to one of the positions denied to her, and the jury could reasonably have determined that she was denied promotions in retaliation for her complaints.
after a bench trial. The court stated that back pay may be awarded even if the figures are inexact . “The court may estimate what a claimant’s earnings would have been without discrimination, and uncertainties are resolved against a discriminating employer.” The court rejected the company’s argument that the base salary to use in calculating Evans’ back pay should have been her salary in 1993, which was $53,000 a year less than her salary in 1992, because her 1993 salary was affected by substantial discrimination. The court distinguished other precedents because they did not involve harassment with a tangible effect on compensation. “If Durham’s argument were to be accepted, then it would be to a discriminator’s advantage to increase its mistreatment from a hostile environment to a decrease in pay, so that any ultimate penalty would be minimized. Evans’s attempts to deal with the discrimination without quitting, despite the negative effects on her salary, should not be held against her.” Id. Because the company used the wrong base period for Evans’ back pay, the court rejected as unfounded the company’s argument that she temporarily made more in her new job, thus mooting Durham’s argument that Evans was not entitled to back pay. Id. Moreover, held the court, Evans’ success at her new employer was short-lived, and her earnings sank rapidly. “Significantly, the court found that her decline was caused by Durham’s actions against her, which ultimately led her to take disability leave from Paul Revere. Because Durham’s conduct affirmatively impaired her ability to mitigate her damages, it would be inequitable to reduce her back pay award in this case.” Id. at 157. The court held that the post-employment actions constituted a continuation of the earlier discrimination and harassment, as well as retaliation. Id.
$1,050,000 in “compensatory damages,” although the cap on compensatory damages for the defendant was $100,000, because the award included back pay and front pay, the plaintiff claimed $2,050,000 for past and future financial loss and unspecified other damages, the defendant did nothing to challenge the plaintiff’s calculations, and without objection by the defendant the court charged the jury on all of these monetary claims and used a general verdict form.
because the award was close to the amount calculated by plaintiff’s damages expert, Leslie Patten.
earnings for purposes of the calculation of a back pay award. What matters is whether the plaintiff can show she or he could have held both the supplemental job and the job in question simultaneously, not whether the plaintiff held the supplemental job prior to the back pay period.
$30,372 plaintiff had received in severance pay. Rhodes would not have received this severance pay if he had remained employed.
properly refused to deduct from back pay the amounts the troopers would have owed for taxes. Citing the Supreme Court decision in NLRB v. Gullett Gin Co., 340 U.S. 361, 27 LRRM 2230 (1951), the court also held that the district court properly deducted the claimants’ net income from their interim employment, rather than their gross earnings from such employment.
of his severance package, including the amount the employer paid to the job placement agency to assist the former employee in finding another job.
plaintiff’s $7,345 in self-empoyment income as a consultant should not be set off as interim earnings against his back pay award, because the district court found that this was “moonlighting” income he could have earned even if he had remained employed with the defendant. “ITT had the burden of proving that Gaworski could not have earned the income had he not been terminated.” Id. at 1112. However, the district court erred in failing to enforce the parties’ stipulation that pension payments should be deducted from plaintiff’s back pay, after enforcing the part of the stipulation covering future pension payments. The plaintiff had filed a letter brief with the lower court requesting that pension payments should not be deducted from his back pay award, but did not move for relief from the stipulation. “The court erred in not enforcing both sides of the parties’ bargain.”
wage earnings of $12,480 a year as plaintiff’s earning capacity, and used this figure as her interim earnings during periods when she was not employed.
lower court’s award of back pay to a class of African-American rodmen discriminatorily denied membership in the union. The court stressed the dilemma faced by a claimant trying to satisfy the mitigation doctrine:
Id. at 1133–34. The court rejected the defendants’ argument that O.C. Brown failed to mitigate his injuries by routinely leaving the jobs to which he was referred after a short time, because Brown was frequently fired at the request of the union business agent because he was a permit man rather than a member. While he did leave one job prematurely but voluntarily, he obtained other work immediately thereafter. The court nevertheless remanded his award for a new determination because he was unavailable for work during the winters, this must be considered along with the availability of work during the winters, and the Special Master had failed to consider the matter at all. Id. at 1134. The court remanded the backpay claims of two other claimants for a determination whether their decisions to continue working in non-union jobs, during times in which Local 201 had more than enough work, constituted a failure of mitigation. The court held that the determination depends on the reasons they had for taking other work: “it may be reasonable for a claimant to decline an interim job from his employer (other, of course, than the very job at issue in his lawsuit) in favor of a lower-paying but more permanent job from someone else. . . . A fortiori, it may be reasonable to decline to leave an existing job when doing so would only make oneself available for possible referral to a better-paid one.” Because the Special Master failed to address the issue, a remand was necessary. Id. at 1135 (emphasis in original). The court rejected the unions’ argument that James Brown failed to mitigate his damages by failing to seek work through other locals or other unions, because the unions were simultaneously arguing that they had more than enough work for permit men in several years and because the unions failed to prove that there would have been a better chance of obtaining union work in other cities. Id. at 1135–36. The court rejected their argument that Sherman Johnson sought no other work in 1975 because this contradicted their simultaneous argument as to other claimants that any claimant who sought any work outside the local failed to mitigate damages. Id. at 1136. The court rejected a number of other speculative and inconsistent arguments by the unions, remanding only parts of three claims, each as to a period of a year or less. Id. at 1136– 37. Turning to the claimants’ appeals, the court remanded the claims of James Brown and R onald Tucker, whose back pay awards were truncated because they obtained non-union employment and ceased to seek referrals. The court held that “the Master’s decision to truncate the awards solely because the claimants chose to keep working at alternative employment, rather than constantly to seek new union referrals, misapplies those doctrines and requires a remand.” Id. at 1137. The court stated that this created a “Catch-22” situation for the claimants:
Id. (citation and quotation omitted). The court noted that constant checking with the unions for referrals would have caused tardiness at the claimants’ non-union employer and jeopardized their jobs. The Special Master made no findings as to their interest in working on union referrals, and the court remanded the awards for such determinations. Id. at 1137–38. Conversely, the court affirmed the truncation of two awards where the Special Master made findings that the claimants could no longer perform the work required. Id. at 1138.
representing only 18 months of back pay, because the plaintiff made no efforts to find a job during the forty-odd months since her discharge. Under these circumstances, held the court, the defendant was not required to prove the existence of substantially equivalent jobs in the relevant geographic area. “We believe it will be the extraordinary case in which an ADA claimant’s decision to withdraw from the job market can be found to have been justifiable, given that virtually all reemployment prospects are plainly precluded absent some effort to reenter the job market. Thus, we believe the mitigation policy fostered by the ADA will be better served by the approach we adopt today, since it affords reasonable inducements for ADA claimants to attempt to secure alternative employment.” Id. at 16. The court did not explain why the plaintiff was awarded 18 months of back pay, but noted that the district court had found that the plaintiff should have been able to find substantially equivalent employment within 18 months if she had exercised due diligence. Id. at 8.
leaving him with an award of $110,070, because of his failure to mitigate his loss. The lower court properly weighed the testimony of the competing experts and concluded that the plaintiff did not exercise reasonable diligence in seeking comparable employment.
argument that the plaintiff had failed to mitigate her damages. Describing the plaintiff’s duty of mitigation, the court stated: “This obligation is not onerous and does not require her to be successful.” Id. at 695. The court described the plaintiff’s obligation as one of acting reasonably. “For example, although an unemployed claimant would generally forfeit her right to backpay if she refused a job substantially equivalent to the one she was denied, she ‘need not go into another line of work, accept a demotion, or take a demeaning position. . . . Similarly, a claimant who voluntarily resigned from comparable employment for personal reasons would not have adequately mitigated damages, but ‘a voluntary quit does not toll the back pay period when it is motivated by unreasonable working conditions or an earnest search for better employment.’ . . . Self-employment, if it is undertaken in good faith and is a reasonable alternative to seeking other comparable employment, may be considered permissible mitigation.” Id. at 695–96. The court held that the plaintiff’s delay of a couple of months in scheduling her starting date for a new job, and her delay of that date by two or three weeks because of the death of her mother, “was hardly so long as to be unreasonable as a matter of law.” Id. at 696. The court also rejected the defendant’s argument that the plaintiff failed to mitigate her damages while she was self- employed. It accepted the lower court’s determination that the jury could reasonably have concluded that the plaintiff’s working conditions in her new job were unsatisfactory, with longer hours, fewer fringe benefits, and more stressful work. Id.
it was made after the defendant filed its notice of appeal, when the lower court had been divested of jurisdiction. Id. at 189–90. Because the issue may arise again on remand, the court directed the lower court to determine whether the plaintiff failed to mitigate her damages when, following the denial of her promotion to full-time status, she requested a transfer to a reserve deputy position. “If on remand the district court decides to award back pay, it must either deduct the amount (if any) that Rutherford could reasonably have mitigated—determined according to the applicable burden of proof and legal standards—or award the full amount and enter supporting findings for doing so.” Id.
Environmental Restoration Management Corp., 530 U.S. 1242 (2000), reversed the judgment for ADEA plaintiff Skalka and remanded it for a remittitur or new trial on damages. The court stated that, on remand, the remittitur should reflect Skalka’s new, higher-paying job “to the extent that any rational jury would have found this income to be proven.” It pointed out that the defendant had the burden of proving reductions in the plaintiff’s damages. It continued: “We note that Skalka is not entitled to back pay for any period in which he earned an equal or higher salary than he would have earned at FERMCO . . . but that his ‘excess’ earnings are not to be subtracted from the back-pay award for the period of unemployment.” (Citations omitted.)
defendant’s argument that it was entitled to a new trial on mitigation, because the charging parties failed to apply for employment with the defendant. The court stated: “But they had explanations for their failure to apply to the very organization which just terminated them. For one thing, after just being terminated for alleged deficiencies in their performance and skills, they had no reason to believe they would be hired if they did apply.” Finally, the court noted that two charging parties had re-applied with the defendant, and had not been hired.
$98,000 in damages, in light of the fact that it awarded only $30,000. The court placed on the defendant the burden of persuasion, and held that the burden was met. “Sheehan found no other employment in the three years between her termination at Donlen and the trial. She was an undisputedly qualified employee with a long and hitherto substantially unbroken work history. Evidence was given that comparable jobs were available. A rational jury had a legally sufficient basis to conclude that Sheehan failed to mitigate her damages. It might rationally have believed that she had done so, but it apparently did reasonably believe that she had not.” Id. at 1049.
constructive-discharge plaintiff. The plaintiff left her job at a chicken processing plant because the defendant did not take adequate corrective action despite her repeated complaints of hostile- environment harassment. She applied for employment with more than thirty non-poultry employers, although she had no training or experience outside the poultry industry. The court rejected the defendant’s argument that her $15,000 back pay award was improper because her failure to apply for poultry-related jobs meant that she had failed to mitigate her damages. It held that she had tried to obtain numerous positions commensurate with her education and skill levels. “Simmons has proffered no evidence that Henderson refused a position that was substantially similar to her previous employment or that she failed to use reasonable care in obtaining a suitable position.” Id. at 618.
period in September 1995, because the plaintiff voluntarily withdrew from the workforce then to care for her young child, and this decision was unaffected by the defendant’s discrimination. The court held that the lower court properly relied on “ of classified employment advertisements with large numbers of postings for positions facially comparable to Caudle’s. Other circuits have upheld determinations that comparable work was available on similar evidence.”
court found that plaintiff had failed to mitigate her damages. After her discharge, plaintiff “applied for employment in public school systems within an eighty mile radius of Salina, sending out fifty to seventy resumes.” These applications were all unsuccessful, and plaintiff took early retirement. Id. at 1210. The court of appeals held that the duty to mitigate is not the same as a duty to succeed in mitigation, and that only an “‘honest good faith effort’” is required. Id. at 1214 (citation omitted). It held that plaintiff had made an adequate effort.
failing to instruct the jury on mitigation, and that mitigation required the plaintiff to hold onto his stock and hope that the market value would not decrease. The court observed that the defendant had consented to a proximate cause instruction in lieu of a mitigation instruction, so that the plain error rule applied. The court held that the lower court’s instruction on proximate cause sufficed under the plain error rule.
The court rejected the defendant’s argument that the plaintiff failed to mitigate his earnings losses after he started receiving Social Security benefits, because the plaintiff testified that he continued seeking employment throughout the back pay period, but had only ceased recording his efforts after he started getting Social Security benefits. The court noted that the defendant bore the burden of proving a failure to mitigate, and held that a reasonable jury could have found adequate mitigation.
defendant’s argument that she failed to mitigate her damages adequately. The plaintiff testified that she had applied for comparable employment with a number of private employers. The defendant argued that she would have obtained employment if she had applied at other State government agencies. “In a back pay dispute, the burden is on the defendant to prove that the plaintiff did not use reasonable diligence to obtain comparable work. . . . In addition, we hold that the mitigation requirement does not apply to a Title VII plaintiff where the defendant’s discriminatory conduct resulted in the disability that prevents the plaintiff from finding other employment.” Id. (citations omitted).
held that a jury can determine both back pay and front pay under the ADA, although no party is entitled to a jury. Rule 39(c), Fed. R. Civ. Pro., allows matters “not triable of right by a jury” to be tried to a jury “with the consent of both parties,” and held that back pay and front pay are not beyond the scope of the parties’ consent under the rule. The Complaint demanded jury trial as to all issues, the Answer did not object, and the defendant never objected to the submission of all claims to the jury. “For purposes such as this, implied consent is as good as express consent— for pleadings may be amended by implied consent, see Fed. R. Civ. P. 15(b), which means that when both sides are content to have an issue decided by the jury, the pleadings are deemed amended to give permission.” Id. at 501.
Service, because Congress had waived the Postal Service’s sovereign immunity to suit by its provision that the Postal Service can “sue and be sued,” and the principle that such waivers are to be liberally construed. The Court concluded:
Id. at 557–58 (parallel citations omitted; FEP Cases citations added; citation format corrected). Justice White dissented, joined by the Chief Justice and Justice O’Connor. Id. at 566.
interest serves to compensate for the loss of use of money due as damages from the time the claim accrues until judgment is entered, thereby achieving full compensation for the injury those damages are intended to redress.”
interest, stating that it is ordinarily an abuse of discretion not to include prejudgment interest in the award. The lower court denied prejudgment interest in part because the jury’s award was already generous. Rejecting this rationale, the court of appeals stated that this consideration is impermissible. “If the award was excessive, the court might have exercised the power of remittitur. But it had no basis to deny prejudgment interest as a substitute for reducing an excessive award.” Id. Similarly, the court of appeals rejected the lower court’s reliance on the plaintiff’s receipt of a substantial settlement of his severance claims, and its reliance on the desultory nature of the plaintiff’s mitigation efforts. The court held that, depending on the manner of calculation, it may be appropriate to deny prejudgment interest on the restricted stock and stock options the plaintiff was denied, as well as on the value of his lost pension benefits. The court stated that on remand the lower court will need to apportion the jury’s award, award prejudgment interest on the lost wages, and make a determination of the propriety of an award of prejudgment interest on the stock rights, options, and lost pension benefits. Id. at 376. Judge Hall concurred in part and dissented in part. Id. at 376–77.
who had been fired at the age of 53. The plaintiff was awarded liquidated damages on parts of his recovery other than the award of the unrealized value of the appreciate of his stock options, and the court followed 1984 Circuit precedent that prejudgment interest is not available where liquidated damages are awarded, without considering intervening Supreme Court decisions on the nature of liquidated damages.
interest on back pay to a class of African-American rodmen discriminatorily denied membership in the union. The case had been prolonged greatly by judicial inactivity; Judge Silberman’s concurrence stated: “As our background section indicates, the district court’s interminable delays are inexcusable and have caused a great hardship to the parties, particularly the class. I am terribly concerned that our remand to this district judge is equivalent to dropping the case into a well, and, therefore, we should be prepared to grant extraordinary relief if there is further unjustified delay.” Id. at 1140. The court held that this factor did not excuse the unions from the obligation to pay prejudgment interest going back to October 21, 1972. “The unions are wrong in arguing that delays for which they are not responsible mandate tolling of prejudgment interest.” Id. at 1139.
interest on back pay to a class of African-American rodmen discriminatorily denied membership in the union. The case had been prolonged greatly by judicial inactivity; Judge Silberman’s concurrence stated: “As our background section indicates, the district court’s interminable delays are inexcusable and have caused a great hardship to the parties, particularly the class. I am terribly concerned that our remand to this district judge is equivalent to dropping the case into a well, and, therefore, we should be prepared to grant extraordinary relief if there is further unjustified delay.” Id. at 1140. The court held that this factor did not excuse the unions from the obligation to pay prejudgment interest going back to October 21, 1972. “The unions are wrong in arguing that delays for which they are not responsible mandate tolling of prejudgment interest.” Id. at 1139.
100, doubled under that law to $300,000, because Puerto Rico law conditions the award of prejudgment interest on the defendant’s having “acted in an obstinate manner during the litigation.” The court held that the lower court did not abuse its discretion in finding that, while the defense was justifiably robust (in that it had defeated several claims) it was not obstinate.
suit to enforce a federal right, the question of whether or not to award prejudgment interest is ordinarily left to the discretion of the district court . . . which is to take into consideration ‘(i) the need to fully compensate the wronged party for actual damages suffered, (ii) considerations of fairness and the relative equities of the award, (iii) the remedial purpose of the statute involved, and/or (iv) such other general principles as are deemed relevant by the court.’” Id. at 873 (citations omitted). “To the extent, however, that the damages awarded to the plaintiff represent compensation for lost wages, ‘it is ordinarily an abuse of discretion not to include pre-judgment interest.’” Id. (emphasis in original; citations omitted). The court held that the lower court erred in concluding that the jury’s award of “financial damages for loss of past and future income” necessarily included prejudgment interest. “The natural reading of this language does not require the jury to engage in complicated computations of interest, but merely asks it to find the amount of the ‘income’ that Gierlinger lost as a result of her termination. In the absence of specific instructions, neither the word ‘financial’ nor the word ‘damages’ meaningfully alters that natural reading.” Id. at 874. Not even the concept of prejudgment interest had been mentioned to the jury. “Although instructed that it would be required to reduce to present value any amounts that it found Gleason’s conduct would cause Gierlinger to lose in the future, the jury was not instructed that its duties included the calculation of interest on wages lost in the past.” Id. The court also stated that the amount of the award approximated the amount of the plaintiff’s lost pay, less the amounts she had earned at other employment, for the eight years since her discharge. Id. at 874–75. The court also held that the lower court erred in denying prejudgment interest because of its conclusion that the plaintiff had failed to mitigate her damages, holding that such a basis for the denial invaded the province of the jury.
law retaliatory discharge claim. The court stated the general rule under Circuit precedent: “‘[a]s a general rule, prejudgment interest is to be awarded when the amount of the underlying liability is reasonably capable of ascertainment and the relief granted would otherwise fall short of making the claimant whole because he or she has been denied the use of money which was legally due.’” (Citation omitted.) The court added: “Generally, prejudgment interest should be awarded “unless exceptional or unusual circumstances exist making the award of interest inequitable.” Id. (citation omitted).
determination interest as an abuse of discretion, where the delay was caused by an administrative backlog and neither the Commissioner nor the Appellate Division provided any reasons justifying a discretionary denial of interest. The court rejected the employer’s argument that interest would be a penalty in this situation, and held that the denial of interest would in effect require the victim to provide an interest-free loan to the defendant
prejudgment interest, compounded annually since October 21, 1972, on back pay to a class of African-American rodmen discriminatorily denied membership in the union. The court rejected plaintiffs’ argument that they should have had the benefit of a variable or larger rate, because they had earlier conceded that such a rate would make them whole.
court held that interest should be awarded on the entire amount because the court inferred that the jury did not award any amount for future loss of income. At the suggestion of the defendant, the jury had been told to request further instructions if it desired to award anything for lost future income, and it never did so.
and upheld the awards of prejudgment and postjudgment interest. The lower court awarded prejudgment interest at the rate of 10%, and postjudgment interest at the rate of 5.407%. Id. at 484. Because the defendant did not challenge the rate of interest below, the court reviewed the award for plain error. The court stated that it had previously approved the Federal rate of interest as making the plaintiff whole, but that this was not the exclusive rate that can be used for this purpose. “ Considering the total circumstances of this case, we conclude that the district court’s imposition of a somewhat higher rate of interest (apparently based on the state interest rate), even if error, was not plain error affecting the fairness, integrity, or public reputation of judicial proceedings.” Id. at 488.
denied in violation of ERISA, rather than the 12% rate mandated by Michigan law. The court held that there was no obligation to follow State law because “the calculation of prejudgment interest is not an area ‘primarily of state concern’ for which there does not exist a substantial body of federal law. We therefore are not faced with a situation where the development of a federal common law rule governing the award of prejudgment interest divests the states of authority over a matter which they traditionally have regulated.” Id. at 617. Moreover, too high a rate would not serve the compensatory purpose of prejudgment interest under ERISA, and would in effect constitute punitive damages not contemplated by ERISA. Id. at 618–19. The court accepted the district court’s determination that the average 52-week Treasury-bill rate for the period at issue. Id. at 619. The court affirmed the lower court’s calculation of a simple 9% rate to avoid the complexity of compounding interest. Id.
subsequent reinstatement of the employee, and continued:
(Footnote omitted.) The court stated that any other holding would make “the most egregious offenders . . . subject to the least sanctions.” Id.
plaintiff. The plaintiff was a former probationary juvenile corrections officer who had been stationed at the Indian River School, a maximum-security unit for young male offenders. She sued for gender discrimination and sexual harassment, and the jury awarded her $125,000 in damages on the sexual harassment claim but found for the defendant on the gender discrimination claim. The sexual harassment claim involved the actions of Corry Appline, a male correctional officer who brought sexually-oriented music videos and other materials to the offenders, encouraged them to call her repulsive verbal epithets, and encouraged them to expose themselves to her. The plaintiff complained repeatedly, to no avail, and was ultimately fired for slapping an inmate who had shouted profanities at her. The court rejected the defendant’s argument that reinstatement was inappropriate because the jury had rejected plaintiff’s gender discrimination claim. It recognized that reinstatement may not be appropriate when an employer is “genuinely dissatisfied with a plaintiff’s actual job performance,” but stated that the principle was inapplicable because “the jury explicitly found in an interrogatory that the hostile environment adversely affected Slayton’s job performance.” Id. The court pointed out that “a hostile environment finding necessarily recognizes that ‘sufficiently abusive harassment adversely affects a ‘term, condition, or privilege’ of employment’” (citation omitted). It concluded: “Thus, reinstatement is an appropriate remedy when a hostile environment prevented an employee from adequately performing her job.” Id.
legitimately laid off before the trial.
plaintiff because the defendant rescinded its discriminatory decision before it took any action on it, and before the plaintiff was harmed. Her subsequent decision not to return from her leave status (which was paid leave for several weeks after the defendant rescinded its decision and invited her to return), rather than any action of the defendant, caused her injury. This aspect of the case is discussed in more detail in Chapter 14 (The McDonnell Douglas / Burdine / Hicks Model), Part C, in the section on “Whether the Challenged Action is Adverse.”
discussed below. The court stated that, while animosity between the employer and employee may bar reinstatement, it is “not a ground on which to deny front pay.” Id. at 365 n.5.
adequately articulate its findings on why instatement to the promotional position at issue was inappropriate and front pay should be awarded. The court distinguished between the reinstatement of discharged employees, which was not involved in this case, and the instatement of the plaintiff into a promotional position discriminatorily denied her. It stated that the considerations may differ for these two types of actions.
to the still-employed plaintiff, relying in part on Federal law, as the courts of Washington do. The court explained that the defendant’s failure to seek a jury instruction on the subject had waived its argument that the plaintiff was barred as a matter of law from receiving front pay because she had not quit and thus had not been constructively discharged. Indeed, the defendant had presented its own jury instruction on front pay. At trial, it objected to the plaintiff’s testimony of future losses only on foundation/opinion grounds, and did not object after a foundation was laid. It’s closing argument mentioned front pay. Id. at 512. The court held in the alternative that there was “ample basis on which to support the jury’s award” even if the objection were considered. The court held that there was evidence of hostility substantial enough to warrant a front pay award. Id. at 512–13. It explained that the plaintiff felt constrained to stay in her job because she was the primary breadwinner for her family, and continued: “ Nonetheless, she made it clear that she could not remain in her job much longer. Thus, the evidence also permitted the jury to find that, as a result of the hostile atmosphere, Passantino would be forced to actually terminate her employment. Accordingly, the jury could properly award front pay on the ground thatPassantino was entitled to compensation for the difference between what she would have earned had she been promoted (in the absence of retaliation) and what she is able to earn at a new job.” Id. at 513 (citation omitted).
the plaintiff had shown sufficient evidence of a causal connection between the sexually hostile working environment to which the plaintiff was subject and her post-traumatic stress disorder (“PTSD”) rendering her unable to work. The court recognized that the plaintiff had been treated for PTSD prior to the harassment, after a train on which she had been working as fireman hit and killed four young people. Although the train crew was not at fault, the plaintiff received treatment for PTSD for eleven months. Id. at 1156 n.8. The court stated that “the district court’s finding of causation is plausible in light of the extensive testimony of Dr. Jeanne Rivoire, Gotthardt’s treating psychologist and psychological expert, that the hostile environment at Amtrak caused Gotthardt’s disability.” Id. at 1156. Because the plaintiff’s expert was qualified as an expert and there was no evidence showing that she was less credible than the defendant’s expert, the court rejected the defendant’s argument that the district court should have credited the defendant’s expert instead of the plaintiff’s expert. Id. at 1156 n.9. The court approved the trial court’s finding, based on Dr. Rivoire’s testimony, that the plaintiff’s PTSD made her unable to perform any job. It held that the lower court did not abuse its discretion in awarding front pay in lieu of reinstatement. Id. at 1156.
EEOC had brought suit, because the defendant had stated its willingness to re-employ the woman in question and the district court had not provided any explanation for awarding front pay rather than reinstatement.
plaintiff a year’s front pay in lieu of reinstatement. The court recognized the presumption in favor of reinstatement, but stated:
Id. at 1339. The court stated that the presence of “some hostility” attendant to many lawsuits “should not normally preclude a plaintiff from receiving reinstatement,” and added: “Defendants found liable of intentional discrimination may not profit from their conduct by preventing former employees unlawfully terminated from returning to work on the grounds that there is hostility between the parties. . . . To deny reinstatement on these grounds is to assist a defendant in obtaining his discriminatory goals.” Id. at 1339–40 (citations omitted). The court stated that the facts here were unusual. Id. at 1340.
1991 Act, and is not subject to the damages caps.
the award of liquidated damages on the plaintiff’s ADEA claim. The court held that the amount of the front pay award should not be doubled in liquidated damages.
Environmental Restoration Management Corp., 530 U.S. 1242 (2000), reversed the judgment for ADEA plaintiff Skalka and remanded it for a remittitur or new trial on damages. The court held that future pension payments cannot be included in back pay and subjected to doubling as liquidated damages, but must be treated as front pay. The court held that the defendant had not waived the issue by failing to object to the jury instruction defining back pay as including “‘pension benefits which a plaintiff would have received’” but for the discrimination, because it was possible to construe the language as referring only to 401(k) payments that the plaintiff would have received before the trial.
denied plaintiff’s cross-appeal from the denial of reinstatement. The court held that plaintiff’s stipulation that all damages ceased as of a certain post-employment date waived any claim for reinstatement. Plaintiff had entered into the stipulation in order to avoid discovery into the circumstances of her resignation from a subsequent employer. The court explained:
seven years worth of wages and benefits, up to September 8, 2007, Salitros’s anticipated retirement date.” The court held that the award was not an abuse of discretion notwithstanding the jury’s determination that plaintiff was not entitled to back pay through the date of the verdict. The court held that the defendant was not prejudiced by the absence of a hearing on front pay, or by the lower court’s reliance on charts that were not received in evidence. It stated that the award of front pay was a matter for the court. It added: “Salitros’s expert testified at trial about his sources and the methodology he used in preparing back pay exhibits. Chrysler had the opportunity to cross examine Salitros’s expert about the information and assumptions on which the back pay exhibits were based. The front pay exhibits were obviously prepared using the same methodology, simply extended for future years. After Salitros filed the affidavit with the exhibits attached, Chrysler did not move to strike the exhibits or ask the court for an evidentiary hearing, but waited to object until the district court had already ruled on the front pay motion.” Id. at 571. The court rejected defendant’s argument that the award of front pay was an abuse of discretion because defendant had offered to reinstate plaintiff: “In this case, the district court found that the reinstatement Chrysler offered Salitros was illusory, because Salitros was never able to work after he was reinstated, and his inability to work resulted from Chrysler’s ill- treatment: ‘He remained on medical leave because of physically and psychologically damaging harassment experienced at the worksite.’” Id. at 572. Similarly, the court rejected defendant’s argument that the award of front pay was an abuse of discretion as to periods in which plaintiff is unable to work, because “Chrysler’s argument depends on its assertion that it did nothing to cause Salitros to go on medical leave.” Id. The court rejected defendant’s argument that the front pay award conflicted with the jury verdict that there had been no discrimination. “The district court’s finding of animosity between the parties was not based on disability discrimination on Chrysler’s part, but on retaliation. Therefore, the district court’s reasoning did not conflict with the verdict for Chrysler on Salitros’s discrimination claim.” Id. at 573. The court denied any reduction for the value of plaintiff’s sick leave or collateral benefits, because the defendant’s actions had made plaintiff sick. Id. at 573–74.
plaintiff. The plaintiff had been Branch Manager of the Gurdon office of the defendant. The court rejected the defendant’s argument—as having “no merit”—that the plaintiff’s front pay should have ended with the September 1998 closure of that office because of revenue losses. “While she was working for the defendant, plaintiff did not live in Gurdon. Rather, she lived in Camden. She was already commuting to work. She could have been transferred to a different existing Alliance Home Health Care office, such as the Hope office or the Prescott office. Therefore, the District Court did not abuse its discretion in awarding front pay in a relatively modest amount.” Id. The combined award of front and back pay was $33,466.84.
award (the present value) awarded to the Title VII sexual harassment plaintiff. The district court had found that the plaintiff, a train engineer, would have qualified for the Capitol Run if it had not been for the sexual harassment she suffered to the point of being diagnosed with Post- Traumatic Stress Disorder and leaving her job just before her check ride on the Capitol Run, that she would have continued to work for eleven years until she reached the mandatory retirement age of 70 on September 15, 2008, and that she had no duty to mitigate her damages. Id. at 1155. The court began its discussion of the calculation of front pay by rejecting the defendant’s argument that its financial losses might lead to a shutdown of the Capitol Run prior to September 15, 2008, because the defendant had introduced no evidence of its financial prospects. Id. at 1155 n.10. The court affirmed the district court’s finding that the plaintiff was an experienced engineer who had the necessary skills and abilities to work the Capitol Run. “For example, senior Amtrak engineers who had trained or evaluated Gotthardt testified that she was a highly capable engineer, and there was evidence that the Capitol Run was less challenging than other Amtrak routes.” Id. at 1156. Although the plaintiff had missed several months of work because of a severely cut finger and because of disciplinary suspensions that were unrelated to the harassment, and although the district court did not take this explicitly into account in making its front pay award, the court held that there was no error in finding that the plaintiff would have worked steadily until the mandatory retirement age because “there was no evidence that Gotthardt was particularly likely to suffer similar injuries or become subject to similar disciplinary suspensions.” Id. The court also held that the plaintiff had no duty to find other employment because it was unlikely that she would succeed. “Although an eleven-year front pay award seems generous, the district court explicitly found that Gotthardt would be unable to work in the future, taking into account her age (59), her educational and vocational background, and, especially, her health. Dr. Rivoire’s testimony supported the court’s finding that Gotthardt’s medical condition would render her unable to return to work.” Id.
ADA plaintiffs. The court reversed the limitation on all plaintiffs’ front-pay awards to two years, and remanded the case with instructions that the district court “articulate the specific bases for the end date for each plaintiff, taking into consideration the factors we have outlined above.” Id. at 1145. The court stated generally:
Id. at 1144 (citations omitted). The trial court accepted the testimony of plaintiffs’ vocational expert as to the plaintiffs’ work life expectancies and earnings capacity based on their educational levels, disabilities, ages, and genders. “He then looked at how much each plaintiff would have earned had he or she been reassigned to a city government position for which he or she was qualified, since those positions pay considerably more than non-city jobs. He took the difference between the annual city salaries and the annual projected future earnings for each plaintiff, accounting for cost of living and merit increases, to determine the amount of front pay each plaintiff deserved per year.” Id. The court stated that this method “accounts for one’s duty to mitigate damages because a plaintiff will receive only the difference between the city salary and his or her earning capacity, not what he or she actually earns.” The differences were substantial, and were supported by the trial record. “For example, at the time of trial in late 1996, after a lengthy and extensive job hunt Mr. Davoll had a job that paid $24,000 a year, and Mr. Escobedo earned $8.50 per hour. Had Mr. Davoll been reassigned to a city position for which he was qualified, his salary and benefits for 1997 would have been worth over $56,000; Mr. Escobedo’s salary and benefits would have been worth over $51,000. Denver presented no evidence to counter Dr. Vogenthaler’s assessment.” Id. The trial court then imposed a two-year ceiling on front pay, however, without citing any information in the record to support the limitation and citing instead to two district court decisions in other cases. Reversing, the court of appeals stated: “Because the purpose of front pay is to make each plaintiff whole, the district court must look at the individualized circumstances of each plaintiff. A flat rule awarding front pay for a specific period, no matter how long or short, would defeat the purpose of the award.” Id. at 1145. While two years might be appropriate here, the lower court was obligated to show that its decision was based on more than “‘mere guesswork.’” Id. (citation omitted).
plaintiff’s evidence of emotional distress—lack of sleep, humiliation, distress, lost wages, etc.— were significant enough to support the jury’s award of compensatory damages in the amounts of $20,000 for retaliatory discharge, $2,500 for sexual harassment, and $50,000 for battery.
compensatory damage claim, because the jury was entitled to discredit his statements of emotional suffering and mental anguish, and because the jury was not required to award reimbursement for his psychologist =s bills just because he had seen a psychologist.
claim and the award of an equal amount on his State-law claim. The court stated that medical or other expert evidence is not necessary to support an ADA emotional-distress award. The plaintiff can rely on his or her own testimony, but must introduce specific facts supporting the claim of emotional distress. The court stated:
immediately after he was terminated he felt “empty,” like he lost his best friend and that there was “a hole in his chest.” . . . He also testified that he was scared that he would be unable to pay his bills and was frustrated with his inability to find other regular work for six months. Titan contends that Webner’s self- serving testimony about his reaction after he was terminated is insufficient to sustain the jury’s award of emotional distress damages. We disagree. As previously stated a plaintiff’s own testimony may provide ample evidence when heard in combination with the circumstances surrounding the plaintiff’s termination. Furthermore, “[a]wards for pain and suffering are highly subjective and the assessment of damages is within the sound discretion of the jury, especially when the jury must determine how to compensate an individual for an injury not easily calculable in economic terms.” . . . We will not disturb the jury’s award of emotional distress damages to Webner on his disability claim. Id. at 836–37.
__ U.S. __, 122 S. Ct. 2583, 153 L. Ed. 2d 773 (2002) , affirmed the award of $266,750 for emotional distress damages, because the evidence supporting the award was much better developed than in cases in which the courts have ordered remittiturs. The court described the evidence:
January 13, 1993. She was subjected to egregious and humiliating conduct which wreaked havoc on her emotional health and caused her great anguish which manifested itself physically. The taunting and harassment made her feel humiliated, hurt, and degraded. The undisputed evidence indicated that Madison was made so distraught by the behavior of fellow employees and managers that she often left her work station in tears. Her family life was affected by what went on in the plant. Her working conditions strained her relationship with her husband and nearly caused the breakup of their marriage. The couple separated several times during the course of her employment at IBP. Madison also testified that as a result of her stressful work environment, she lost weight, had trouble sleeping and frequent headaches, and broke out in hives. The evidence about the physical and emotional effects on Madison was corroborated by her family and several coworkers. Keith Ratliffe, a minister who counseled Madison on at least four occasions during these events, described her as depressed and emotionally drained because of her experiences at IBP. Id. at 802.
claims of race and age discrimination in promotions. In upholding the award of $125,000 in compensatory damages, the court relied on the plaintiff =s testimony Athat he has trouble sleeping and wakes up with his heart pounding, not knowing where he is, @ that he had worked very hard to position himself well in this country after immigrating here but felt that he was not recognized for his efforts, and that after 18 years at Seagate it was too late for him to start over elsewhere. He had sought the counsel of his wife, minister, and friends. The court held that this was adequate.
racial discrimination plaintiffs against the defendant Sheriff. Although the court held that a " reasonable jury could have found that Captain Gettis was not promoted to the unclassified Captain position filled by Dorothy Walker because he was white, his testimony that he would not have accepted the position unless he received written assurances of job security doomed any claim for back pay or instatement because no promotee had received such assurances. However, the court upheld his award of $10,000 in compensatory damages for the pain and suffering of not having been offered the promotion because of his race.
rejected the defendant’s argument that liquidated damages were improper because the hiring manager was ignorant of the ADEA. “Phillips’s general manager did testify that he was not aware that it was illegal to discriminate on the basis of age, but as this circuit has held, leaving managers with hiring authority in ignorance of the basic features of the discrimination laws is an ‘extraordinary mistake’ for a company to make, and a jury can find that such an extraordinary mistake amounts to reckless indifference.” Id. at 778. The court rejected the defendant’s argument that the printed message on its application forms, acknowledging that the ADEA prohibits discriminating against applicants over the age of 40, demonstrates a good-faith effort to comply and bars the imposition of liquidated damages. “However, this evidence appears more harmful to Phillips than helpful, because the jury could easily have concluded that printing this statement on the application but then making no effort to train hiring managers about the ADEA shows that Phillips knew what the law required but was indifferent to whether its managers followed that law.” Id.
available even in the absence of particularly “egregious” facts. The Court held: “ The terms ‘malice’ or ‘reckless indifference’ pertain to the employer’s knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.” Id. at 535. Absent peculiar circumstances, where the employer intentionally selects an employee for adverse action because of that individual’s protected characteristics, it will do so with, at a minimum, a “reckless indifference” to the employee’s statutory rights.
Id. at 536–37. “ While egregious misconduct is evidence of the requisite mental state . . . § 1981a does not limit plaintiffs to this form of evidence, and the section does not require a showing of egregious or outrageous discrimination independent of the employer’s state of mind.” Id. at 535.
“garden variety,” or “not egregious,” or “not outrageous,” or “circumstantial,” or even “based on inferences.” The Court has struck down all of these excuses for denying relief, and given plaintiffs another shot. Even with the restrictions on vicarious liability discussed below, I believe that there will be a substantial increase in punitive-damages awards as a result of this decision.
punitive damages may be awarded by the jury is broader than it previously was, when there was in many courts a second tier of egregiousness that was a prerequisite for permitting the jury to award that form of damages. In holding that punitive damages are available for most instances of intentional discrimination, however, the Court did note several types of situations in which discriminatory conduct will not support an award of punitive damages. These include cases where the plaintiff’s theory is novel or unrecognized, where the defendant was unaware of the applicable provisions of law, or where, perhaps, there was a good faith belief in the applicability of a defense such as the bona fide occupational qualification defense. With the possibility of punitive damages in far more cases in the future, it is particularly critical that employers take steps to avoid the imposition of employer liability for decisions of lower-level managers. The Court made new law on this issue, favorable to employers, as discussed below. The steps that will likely help to avoid vicarious liability for punitive damages should also help avoid liability in the first instance, as well.
the manner in which it is done; 2) the agent was unfit and the principal was reckless in employing him; 3) the agent was employed in a managerial capacity and was acting in the scope of employment at the time of the conduct giving rise to the punitive damage claim; or 4) the principal or a managerial agent ratified or approved the act. Id. at 542–43. The Court explicitly modified the common law rule on “scope of employment” to hold that “an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions were contrary to the employer’s ‘good-faith efforts to comply with Title VII.’” Id. at 545. The goal of the statute is prophylactic, the Court reasoned, and dissuading employers from preventing discrimination, which application of the common law rule might do, is directly contrary to the purposes underlying Title VII.
given to the employee, the amount of discretion that the employee has in what is done and how it is accomplished. . . . Suffice it to say here that the examples provided in the Restatement of Torts suggest that an employee must be ‘important,’ but perhaps need not be the employer’s ‘top management, officers, or directors,’ to be acting ‘in a managerial capacity.’” Id. at 543. The Court held that the general “scope of employment” inquiry under the Restatement was not appropriate for purposes of determining the propriety of punitive damages under Title VII. “On this view, even an employer who makes every effort to comply with Title VII would be held liable for the discriminatory acts of agents acting in a ‘managerial capacity.’” Id. The Court was clearly bothered by the idea that the employer’s awareness of the antidiscrimination laws which it sought to foster in last Term’s decisions in Faragher and Ellerth might increase the employer’s exposure to punitive damages, so that employers would have the greatest possible incentive to keep their decisionmakers ignorant of the law.
Id. at 544 –45 . The Court then took action to prevent this result:
Id. at 545 –46 (citations omitted). The Court then remanded the case for application of the
Id. at 546.
damages will not affect claims made directly against the wrongdoer, such as those under 42 U.S.C. §§ 1981 or 1983, or under common-law claims. Second, the Court’s decision will place an even higher premium on employers’ adoption of antidiscrimination and anti-harassment policies. The Court is sending a clear message, in decision after decision, that the workplace rather than the courts should be where problems under the fair employment laws are to be avoided or, if a problem still arises, resolved. Third, the question of which officials are acting in a managerial capacity seems not to be determinable by reference to job titles or descriptions, but by reference to the official’s actual role in the particular situation in question. The Court was certain that William Allen, the interim executive director of the defendant, was serving in a managerial capacity. It was uncertain, however, whether Leonard Wheat, the acting head of the Washington office, was functioning in a managerial capacity even if he “effectively selected O’Donnell’s replacement.” There is clearly going to be a wave of litigation over the question of who functions in a managerial capacity, and the answer may be more restrictive than the question of who is a “supervisor” under the special liability rules of Ellerth and Faragher.
an agent. When the Civil Rights Act of 1991 was before Congress, its supporters did not argue for any exception to the ordinary rules for the availability of punitive damages, but argued instead that they wanted the same entitlements to punitive damages enjoyed by the victims of other types of violations. I think it noteworthy that Justice Stevens’ partial dissent, joined by Justices Souter, Ginsburg and Breyer, did not disagree with the Court’s holding, but only with the decision to reach the question of the standards for vicarious liability.
punitive damages against employers for the decisions of their lower-level managers. I agree with Rick that in this decision, as in Faragher and Ellerth last year, the Court is imposing on employers in the first instance the obligation to prevent and deal effectively with harassment or discrimination in their workplaces. If the manager who made the challenged decision was acting counter to the employer’s commitment to non-discrimination, the employer may avoid liability for punitive damages. This creates an obligation and an opportunity to adopt, communicate, and implement a non-discrimination policy and complaint procedure similar to the anti-harassment policies and procedures adopted by many employers this year. It also behooves employers to be sure that they train their supervisors and managers in non-discriminatory decision-making, and that they keep records of those training sessions. There should also be records kept of the complaints received through the internal process and the resolution of those concerns.
maximize the opportunity to obtain punitive damages are as follows:
discrimination, this means claims under 42 U.S.C. § 1981 or State law. For intentional race or sex discrimination in the public sector, this means claims under 42 U.S.C. § 1983 that will survive a claim of qualified immunity, or claims under State law. Harassment claims can involve common-law assault or battery causes of action. State-law fair-employment remedies may be superior to remedies under Federal law. There is, of course, a danger that a jury presented with both the employer and the wrongdoer may choose to award damages against the wrongdoer instead of the employer.
diligently trying to prevent discrimination. Employers that merely proclaim a policy and do nothing further should not be entitled to the benefit of that protection. Employers that ignore complaints, or that have notice of discrimination and fail to act on it, should not be entitled to the benefit of that protection. Plaintiffs’ lawyers should consider using expert testimony on workplace practices. Caution: this type of attack needs to be reserved for cases with strong facts so that we can get the principle established. A flood of weak cases could lead to early and wholesale rejections of this important distinction.
clear and unambiguous, should be carried higher when there is no response, and should be made as often as necessary to ensure that the employer is aware, at the highest levels, that prior corrective actions have not worked. This is no occasion for coyness.
enough to qualify for punitive damages. Plaintiffs have to prove knowledge in order to prove ratification and approval, or in order to prove reckless retention of a discriminatory official. It is in their interest to make notice incontestable. I have sent pre-suit certified letters or Federal Express packages to any known counsel and to the Chairman of the Board and the CEO of companies, providing full details of the problems, in order to preserve my clients’ ability to seek maximum relief.
else would have been more positive. At the same time, plaintiffs’ attorneys should not quibble over arguably adequate actions taken by employers in light of the information reasonably available to employers at the time, even if they would have done something else or if hindsight indicates that a stronger course of action would have been more desirable. Employers are clearly going to be allowed some discretion, if the evidence shows that they took reasonable steps to obtain the relevant information and they exercised their discretion reasonably in light of the information reasonably available to them. As in harassment cases, the Court is clearly trying to give employers a greater incentive to prevent and remedy discrimination, in advance of litigation.
tamper-proof record of relevant events in the workplace (spiral notebooks in which pages cannot be inserted, all writing is in ink, no erasures or substantial strike-outs are made, all writing is consistently and without exception either on one side of the paper or on two sides, all entries are dated and in chronological order, there are no gaps of more than a line between entries, and all entries are made as contemporaneously as possible but on the employee’s own time). Such documents can be a powerful aid to proof, if they record incidents faithfully as matters of fact, without editorializing. They can powerfully aid a plaintiff with a good claim, and can powerfully aid a defendant when the plaintiff does not have a good claim.
on a lie and can prove that the defendant intended the plaintiff to do so, the plaintiff may be able to argue fraud. At a high enough level but necessarily above the level of the wrongdoer the plaintiff may be able to argue that deceit constitutes approval and ratification.
had more than one arrow in the quiver. The second arrow is the one that may get through.
unlike personal-injury attorneys treat both compensatory and punitive damages as an afterthought. We cannot do this any more. We have to do the localized research, take the necessary discovery, select our theories, and put on the evidence that will lay the foundation for punitive damages.
faith mistake is a defense. It is not clear why many plaintiffs’ attorneys spend so much effort proving that the employer made a mistake, when this simply proves a defense. Instead, we need to spend effort seeing if we can prove that the employer knew it was a mistake.
we need to counsel our clients to do in order to try to avoid punitive damages exposure. Review of challenged personnel decisions should be made with an open mind, so that if bias crept into the initial decision, it can be corrected promptly. If the decision was proper, but it was not well communicated or documented, that can be remedied during the complaint and internal appeal process. Obviously, a complaint or open door procedure cannot be so cumbersome that decisions are never implemented and managerial authority is undermined, but the Court is clearly permitting employers to police themselves, at the risk of punitive damages liability if they fail to do so effectively.
compensatory damages and $285,000 in punitive damages (reduced from $624,000, to comply with the cap) against the Title VII defendants, U-Haul International and its wholly-owned U- Haul Co. of Maine. The plaintiff was fired from her job of Customer Service Representative two weeks after she had been hired. The manager told her that her only trouble was that she sat when she had to pee. In rejecting the defendants = argument that the award was excessive, the court stated that the level of reprehensibility of the conduct in question is often the most important factor in determining whether an award of punitive damages is excessive. Id. at 673. It stated that the manager = s statement likely came as a humiliating shock to the plaintiff and evidenced a A blatant disregard @ of the law. It also relied on evidence that the manager had told the plaintiff he would deny making the statement in the event of a discrimination lawsuit. A Given the testimony that appellants knowingly violated appellee = s federally protected rights and then attempted to conceal this violation, we find that appellants = actions were more reprehensible than would appear in a case involving economic harms only. @ Id. at 673 (citation omitted).
retrial, holding that the lower court had committed prejudicial error by excluding evidence that Ameritech was reluctant to take action against the harasser because he might use the grievance and arbitration procedure of the collective bargaining agreement to get reinstatement and back pay. The court held that such evidence was relevant on punitive damages issues because it went to the defendant = s state of mind, and that its exclusion may have affected the $650,000 award.
damages, and held that a reasonable jury could conclude that the defendant had acted with reckless indifference to the plaintiff = s rights. After a confrontation, the male plaintiff had reported abusive conduct by a male supervisor to a female employee, and followed up with a information about a number of similar complaints be female employees. The company = s A Independent Review Team @ had accused him of exposing the company to liability by relaying the complaints. He was demoted from his supervisory position to ramp serviceman, on company charges that he behaved inappropriately for a supervisor in his confrontation with the asserted harasser, and had either falsely accused a fellow supervisor or sexual harassment or exposed the company to liability by delaying too long in making his reports. The plaintiff pursued his internal appeals, but they were rejected at every level. The lower court held that punitive damages could not be awarded because the company listened to his appeals. The court of appeals reversed. It stated that A Mr. Bruso demonstrated at trial that the major players in the decision to demote him were familiar with the antidiscrimination principles of Title VII and United = s zero-tolerance-for-discrimination policy, which was designed to implement Title VII in United = s workplace. . . . Gordon, who was Mr. Bruso = s final appeal in his attempt to challenge his demotion, was herself responsible for educating and training United = s employees about Title VII and United = s antidiscrimination policies. @ Id. at 859. The court held that they A must have been aware of the possibility that demoting Mr. Bruso after he had come forward with allegations of harassment would violate Title VII. @ Id. at 860
awarding $200,000 in compensatory damages and $500,000 in punitive damages in this ADA case, the district court limited the total award to $300,000, and the court of appeals threw out the punitive award entirely. The defendant deferred to its medical adviser, who was admittedly negligent in considering the plaintiff = s situation, and held that negligence was not enough to support punitive damages. Judge Wood dissented.
jury = s award of $100,000 in punitive damages and $28,000 in compensatory damages. The court held that there was enough evidence to support a jury finding of malice or reckless indifference, because of defendant’s policy not to allow employees with any restrictions to return to work, and refused to explore reasonable accommodations.
plaintiff = s punitive-damages claim to the jury. The court held that excessive delay in responding to the plaintiff = s uncorroborated complaint against a harassing co-worker, followed by effective action, is not enough to support a claim for punitive damages.
defendant on the plaintiff = s claim for punitive damages. The court held that the following facts were sufficient to support a finding of malice or reckless disregard:
Id. at 636 (footnote omitted.) The court explained its holding about the investigation, id. at 636 n.7:
The court held that a punitive-damages claim does not require proof of a physical injury, id., or of some minimum period in which the harassment occurred. Id. at 637. The court observed, id.:
claims of race and age discrimination in promotions. The court upheld the award of punitive damages as well as the other relief, based on evidence that the Human Resource Manager lied about the bases of his personnel decisions and manipulated the plaintiff = s promotional opportunities to his detriment. The court held that Kolstad was inapplicable because the award here was under a direct liability theory, because the plaintiff showed A malice or reckless indifference to his federally protected rights on the part of the managers whom Seagate designated to implement the company = s anti-discrimination policy. @ (Citation omitted.) The court explained:
Id.
could reasonably have found that the plaintiff was subjected to gross forms of sexual harassment, including unwanted touching, demands for sexual favors, and was daily subjected to grossly offensive epithets. The court held that A recklessness and malice are to be inferred when a manager responsible for setting or enforcing policy in the area of discrimination does not respond to complaints, despite knowledge of serious harassment. @ It explained: In the instant case, Ms. Deters introduced evidence that entitled the jury to believe that she persistently complained to Mr. Taylor, describing to him in excruciating detail, the nature of the sexual harassment to which she was subjected. Moreover, she introduced evidence, including the testimony of two witnesses, that Mr. Taylor personally observed instances in which Ms. Deters was verbally abused with vulgar language, and lewd jokes and comments were made in her presence. According to this evidence, Mr. Taylor was wholly unresponsive. When Ms. Deters complained about co‑workers insulting her using vulgar sexual language, Mr. Taylor responded that these men were A hardcore @ and reminded Ms. Deters that they were revenue producers, and that she was not. On another occasion when Ms. Deters complained about being groped and fondled by a co‑worker, Mr. Taylor responded that he was just friendly, and that she was reading too much into it. By his own testimony, Mr. Taylor stated that he knew that this type of conduct constitutes sexual harassment. Thus, Ms. Deters presented evidence from which a reasonable jury could have inferred that management not only did not respond to her complaints, but also minimized and disregarded them so as to protect the A revenue producers @ in the operation. On this evidence a jury could reasonably conclude that Equifax acted with malice or reckless indifference with respect to sexual harassment, entitling Ms. Deters to punitive damages.
and remanded the case for trial. The court held that management = s knowledge of Neihart = s sexual harassment of the plaintiff, its failure to take prompt and effective remedial action, and the fact that “management = s reaction to Knowlton = s complaint was unresponsive because she was assured continued contact with Neihart,” provided sufficient evidence “from which a jury could make a reasonable inference that Teltrust acted recklessly and with disregard for Knowlton = s federally protected civil rights.”
that Cooper or Regus genuinely believed that racial discrimination in the context of this case was permissible, and (2) there is ample evidence that both Regus and Cooper intentionally discriminated against Appellants because of their race, nothing more is required to support an award of punitive damages. See Alexander v. Fulton County, Ga., 207 F.3d 1303, 1337 – 38 (11th Cir. 2000) (holding that defendant = s knowledge that it is illegal to treat employees differently on account of race, coupled with credible evidence that defendant intentionally did so, is sufficient for a reasonable jury to conclude that the Kolstad standard for punitive damages has been satisfied). @
held that the Pregnancy Discrimination Act defendants could not defend against an award of punitive damages because they thought it was A not right @ that pregnant employees would wait on tables and carry heavy trays. The court explained:
(Citation omitted.)
made by an official, Sunny Sonner, who conducted her own investigation and did not rely on any input from the discriminatory official, Ron Haas. A Although Haas delivered the message of termination to Williams and may have taken credit for it, he was not the company = s decisionmaker. @ Id. at 487. The court held that the plaintiff did not give notice of discrimination to Sonner: A Second, there was no evidence that Sonner = s decision was motivated in any way by gender bias or that she ratified or approved Haas = s discriminatory treatment. . . . On the contrary, Williams had the opportunity to confide in Sonner about Haas = s discrimination, but she never did so. As Williams was herself a managerial employee, it would be incongruous, absent most unusual circumstances, to infer that she could not or need not resort to in‑house means to address her discrimination complaints. Under these circumstances, the line supervisor = s misconduct cannot be imputed to Trader. . . . @ Id. at 487 – 88.
hierarchy to qualify as a A managerial agent. @ It explained: A He had supervisory authority over Deffenbaugh, terminated her on his own authority, and was, as noted, in charge of departments at six stores. @ Id. at 285.
and held that a reasonable jury could conclude that the defendant had acted with reckless indifference to the plaintiff = s rights. The court held that the three officials who participated in the decision to demote the plaintiff after he informed them of another supervisor = s sexual harassment of women were all managerial agents acting within the scope of their employment with respect to the demotion. King was the defendant = s manager of cabin service at O = Hare Airport, Strickland was the defendant = s General Manager at O = Hare Airport, and Gorden was Senior Litigation Counsel responsible for preparing materials and training employees with respect to sexual harassment, who was given final decisionmaking authority over the plaintiff = s internal appeals.
claims of race and age discrimination in promotions. The court upheld the award of punitive damages as well as the other relief, based on evidence that the Human Resource Manager lied about the bases of his personnel decisions and manipulated the plaintiff = s promotional opportunities to his detriment. In addition, a senior official — the Vice President of Product Line Management — was responsible for another instance of promotional discrimination.
need not decide whether Mr. Taylor was a sufficiently highly ranked managerial or policy‑making employee such that his knowledge of the harassment Ms. Deters suffered would be imputed as a matter of law to Equifax. It is sufficient here that Equifax had specifically designated Mr. Taylor as a final representative of the company to implement the sexual harassment policy in its Lenexa branch, and to process complaints of sexual harassment. @ It held that information provided to an employee so designated was A knowledge to the company. @ Id. at 1270 – 71.
another employee was being harassed at the same time, by one of the Assistant District Managers who was also harassing the plaintiff. The court held that the other employee = s complaints to Taylor C the designated recipient of such complaints in that office C and to corporate headquarters benefited the plaintiff as well as the complainant.
The jury did not award any compensatory or nominal damages, but did award the statutory maximum of $100,000 in punitive damages. The court summarized the law of the Circuits:
Id. at 357 (internal citation updated). Further surveying the law, the court found that there was no consensus on the common-law rule. “The requirement of actual damages has been described by commentators as the majority rule, see Prosser & Keeton on the Law of Torts § 2, at 14 (5th ed. 1984), but it has also been sharply criticized, see id ; see also Restatement (Second) of Torts § 908 cmt. (c) (1979) ( ‘[I]t is not essential to the recovery of punitive damages that the plaintiff should have suffered any harm, either pecuniary or physical.’).” Id. at 358. The court distinguished the general concerns about allowing awards of punitive damages without proof of actual harm: “In Title VII cases, however, the statutory maxima capping punitive damage awards strongly undermine the concerns that underlie the reluctance to award punitive damages without proof of actual harm.” Id. at 359. The court continued:
harassment plaintiff in a case in which no compensatory damages were awarded, and in which the awards of back pay and front pay were reversed.
affirmed the denial of punitive damages. Defense counsel had advised the defendant not to offer a severance payment because the plaintiff had filed an EEOC charge. The court held that “whether or not the advice was appropriate, action taken pursuant to advice that the action is consistent with the law is insufficient to support an award of punitive damages under the standard articulated in Kolstad.“
Title VII hostile-environment plaintiff. The court stated:
damages awards of $5,000 for Title VII sexual harassment, $25,000 for retaliatory discharge, and $50,000 for battery in a case involving improper touching for two days, including touching the plaintiff’s breast near the nipple and maintaining the contact for several seconds, lying to police investigators about the incident, and lying in court papers about the incident for three years and not amending the papers until 13 days before the trial.
employer’s asserted reason for not taking effective action against the alleged harasser—that he would file a grievance under the collective bargaining agreement and be reinstated—was irrelevant on liability but was relevant to the issue of the employer’s state of mind with respect to a punitive damages award. The court held that its exclusion was prejudicial error, and remanded the case for a new trial on punitive damages.
and the award of an equal amount on his State-law claim. The plaintiff had twice injured his back on the job, and been off for long periods. At the time of his termination, he was working in a different job with an accommodation that eased the strain on his back, and was meeting his production target. When his attorney filed a proceeding to require the company to allow videotaping of his work station for purposes of a workers’ compensation claim, the defendant fired the plaintiff and stated it was because of his “disability.” The court held that there was insufficient evidence of malice or reckless disregard:
Id. at 837.
nothing to discipline Mr. Krout despite the fact that Mr. Snider testified that he believed the allegations of harassment made against Mr. Krout. Flying J’s management, furthermore, stated that Mr. Krout did nothing wrong, and even accused the women of conspiring to remove Mr. Krout, again despite the fact that the manager responsible for investigating the allegations thought that they were credible.”
__ U.S. __, 122 S. Ct. 2583, 153 L. Ed. 2d 773 (2002) , held that the plaintiff had shown enough evidence to support an award of punitive damages by showing egregious harassment, repeated complaints, and repeated failures to act on the complaints. The court rejected the company’s argument that it was entitled to the defense for good-faith efforts to comply, inasmuch as it had adopted a policy and engaged in regular training of its managers. The court stated:
Id. at 795–96 (citation omitted).
award from the $50 million awarded by the jury to $5 million. The court seems to have accepted that punitive damages may be based in part on defense counsel’s litigation conduct.
harassment plaintiff, rejecting the defendant’s argument that it could not be held liable for punitive damages because the plaintiff had complained unsuccessfully to her supervisor and to the plant manager, but had not complained to the company President, the last step in the company’s internal complaint procedure. The court first described Circuit precedent applying Kolstad on the question of vicarious liability. In pertinent part, including its footnote 9, it stated:
The court held that there was evidence that the plaintiff’s supervisor and plant manager knew about the antidiscrimination laws. Id. at 662–63. It held that Lester was not a managerial agent for purposes of punitive damages liability, because he “ had little discretion in hiring, disciplining or terminating employees that reported to him.” Id. at 663. It held that the jury could reasonably find that Plant Manager Margelos was a managerial agent because he “hired the staff for the Elk Grove Village plant, he took care of personnel issues and he had the authority to discipline and terminate the employment of those who worked for him, directly or indirectly.” Id. Finally, the court held that a reasonable jury could reject the defendant’s “good faith” defense because the plaintiff’s co-worker made over a hundred demeaning comments about women in four months, the plaintiff’s supervisor told her she was being too emotional and put his hand on her knee, and the Plant Manager failed to follow the company’s policy by failing to put the complaint in writing, and never did take meaningful action. Id. at 655, 663–64.
Washington State-law racial harassment plaintiff. The plaintiff was subjected to a frequent barrage of racist slurs and jokes, some of them in the presence of a member of management. The court agreed with other Circuits that “the inaction of even relatively low-level supervisors may be imputed to the employer if the supervisors are made responsible, pursuant to company policy, for receiving and acting on complaints of harassment.” Here, such an official not only listened to the racist slurs but laughed at the jokes and told some himself.
1981 racial and ethnic harassment defendant because the plaintiff had not complained and the defendant’s constructive knowledge of the harassment, while sufficient for liability, was not sufficient for punitive damages.
claims of race and age discrimination in promotions. The court upheld the award of punitive damages as well as the other relief, based on evidence that the Human Resource Manager lied about the bases of his personnel decisions and manipulated the plaintiff = s promotional opportunities to his detriment. The facts of this case are described in greater detail at p. 45 above. The court held that Kolstad was inapplicable because the award here was under a direct liability theory, because the plaintiff showed A malice or reckless indifference to his federally protected rights on the part of the managers whom Seagate designated to implement the company = s anti-discrimination policy. @ (Citation omitted.) The court = s explanation of the conduct giving rise to direct liability is set forth above.
direct corporate liability for punitive damages. In footnote 3, the court explained that A vicarious liability applies to situations in which a supervisor perpetrates harassment himself, whereas a theory of direct liability is more appropriate where an employer fails to respond adequately to harassment of which a management‑level employee knew or should have known. This distinction is subtle, but proves to be crucial to our discussion of Equifax = s invocation of a > good‑faith = defense. @ Id. at 1270 n.3.
compensatory damages and $285,000 in punitive damages (reduced from $624,000, to comply with the cap) against the Title VII defendants, U-Haul International and its wholly-owned U- Haul Co. of Maine. The plaintiff was fired from her job of Customer Service Representative two weeks after she had been hired. The manager told her that her only trouble was that she sat when she had to pee. The court rejected the defendants = efforts to show that they had made a good- faith effort to comply with the law, holding that it was not enough just to have a written policy. The defendants did not show that they had specific education programs, or disseminated or revised written materials, or trained supervisors, or that there were any examples of compliance. The court stated that it was not holding that evidence on all of these factors was essential, but only that the jury = s rejection of the defense was reasonable.
door policy is not enough to qualify for the A good faith attempt to comply @ defense under Kolstad. Id. at 266.
implementation of a written or formal antidiscrimination policy is relevant to evaluating an employer = s good faith efforts at Title VII compliance, it is not sufficient in and of itself to insulate an employer from a punitive damages award. Otherwise, employers would have an incentive to adopt formal policies in order to escape liability for punitive damages, but they would have no incentive to enforce those policies. @ (Footnote and citation omitted.) Turning to the facts of the case, the court stated:
Id. at 860 B 61 (citation omitted).
defendant on the plaintiff = s claim for punitive damages. The court rejected the defendant = s arguments for an affirmative defense:
(Citation omitted.)
and Washington State-law racial harassment plaintiff. The plaintiff prevailed on a negligence theory of liability, rather than vicarious liability, because his chief harasser, while a supervisor, was not in the chain of command over the plaintiff. As described above, the affirmative defense was not available to the defendant. The court rejected the defendant’s argument that punitive damages were inappropriate because of its “written materials forbidding harassment and putting in place anti-harassment procedures.” Id. at 810. The court seemed to treat the unavailability of the affirmative defense to liability in a harassment case as tantamount to the unavailability of a good-faith defense to punitive damages, but any such suggestion would be dictum because it also relied on the ineffectiveness of the policy: Id. at 811.
of the cap) in a Title VII sexual harassment case, rejecting the defendant = s arguments that the award should be set aside in light of Kolstad. The court stated that it was unclear who had the burden of proof with respect to good-faith efforts to comply, but that there was no need to resolve the issue because there was adequate evidence of the lack of such efforts. Id. at 1209 n.4. At a minimum, held the court, the employer must adopt antidiscrimination policies, make a good-faith effort to educate its employees about its policies and the statutory prohibitions, and must enforce its policies.
Id. at 1210 (citation omitted).
charged with the duty of being the final decisionmaker on sexual harassment complaints decided to take no action, in order to protect the revenue-producers at the firm, the court held that this was a case of direct liability.
(Citations omitted.)
and Washington State-law racial harassment plaintiff. The plaintiff was subjected to a frequent barrage of racist slurs and jokes, some of them in the presence of a member of management. The defendant argued that it was entitled to a new trial because the lower court had excluded evidence of one of the post-suit steps it had taken to remedy discrimination. The court stated that evidence of post-charge remediation “would not automatically bar the imposition of punitive damages,” that the trial judge acts as a gatekeeper as to the relevance of the evidence, and that the jury can decide that the evidence is either window-dressing designed to avoid an award of punitive damages, or bona fide evidence of repentance “lessening the need for additional deterrence in the form of punitive damages.” Id. at 815 (footnote omitted). In the case at bar, the trial judge allowed evidence of the post-charge investigation conducted by the company, and only barred evidence that the defendant put all of its supervisors and managers through anti- harassment training two months after the plaintiff filed suit. The court held that the trial court did not abuse its discretion in excluding this evidence and explained: “Such evidence, if introduced, would have done little, if anything, to undermine the uncontroverted evidence that, even after everyone in management became fully cognizant of Swinton’s allegations, no one— not Pat Stewart, none of those at U.S. Mat who had witnessed the harassment and had done nothing about it, and none of the workers who had actually hurled the epithet ‘nigger’ at Swinton—was ever fired, demoted, or in any way disciplined.” Id. at 816 (footnote omitted). Nor was the court persuaded that the exclusion of the evidence was prejudicial in light of the jury argument of plaintiff’s counsel, because the company did nothing in response to the harassment, because the defendant made no contemporaneous objection and the “plain error” standard was not satisfied, because the company did introduce evidence of its investigation, and because the argument actually referred to the company’s failure to take action prior to the harassment of the plaintiff. Id. at 816–17.
compensatory damages and $285,000 in punitive damages (reduced from $624,000, to comply with the cap) against the Title VII defendants, U-Haul International and its wholly-owned U- Haul Co. of Maine. The plaintiff was fired from her job of Customer Service Representative two weeks after she had been hired. The manager told her that her only trouble was that she sat when she had to pee. The court rejected the defendants = argument that the 19 to 1 ratio of punitive to compensatory damages was excessive. The court stated that the level of reprehensibility of the conduct in question is often the most important factor in determining whether an award of punitive damages is excessive. Id. at 673. It stated that the manager =s statement likely came as a humiliating shock to the plaintiff and evidenced a Ablatant disregard @ of the law. It also relied on evidence that the manager had told the plaintiff he would deny making the statement in the event of a discrimination lawsuit. AGiven the testimony that appellants knowingly violated appellee =s federally protected rights and then attempted to conceal this violation, we find that appellants = actions were more reprehensible than would appear in a case involving economic harms only. @ Id. at 673 (citation omitted). The court stated that proportionality was not subject to a simple mathematical test:
Id. (citations omitted). Finally, the court held that, although there were no civil or criminal penalties, the defendants had adequate notice of the potential consequences of their conduct by virtue of the statutory caps on damages. Id. at 673 B74. The court noted that the Supreme Court has directed courts to accord substantial deference to legislative judgments on appropriate sanctions, and continued: AAccordingly, a punitive damages award that comports with a statutory cap provides strong evidence that a defendant =s due process rights have not been violated. @ Id. at 673 (citation omitted).
$75,000 in punitive damages was excessive when compared with an award of only $2,500 in compensatory damages, and offered the plaintiff remittitur of the punitive award to $25,000 or a new trial. The court held that the plaintiff =s 3.5% pay raise was prospective relief and could not be considered when examining the punitive award for excessiveness. The court stated that Aspecial consideration must be given to Rubinstein =s failure to respond to the remand or remit issue. He simply offers us no guidance as to whether if we deem the award excessive he is entitled to a new trial on this issue, or whether, as an alternative, we should remit the award or leave it to the district court for further consideration. @ Id. at 407. The defendant had retaliated against the plaintiff for seeking redress of discrimination, by denying him a 3.5% pay raise. In considering the degree to which the defendants = conduct was reprehensible, the court stressed that there was only one act of retaliation, and that there were other reasons for denying the plaintiff a pay raise. Id. at 408. The second factor is the relationship between punitive and compensatory damages. The court stated:
Id. at 408 (citation omitted). The court remitted the award to ten times the amount of compensatory damages, stating that Athe Supreme Court has indicated that a ratio of ten to one does not necessarily >jar one =s constitutional sensibilities. = @ Id. at 409 (some internal quotation marks omitted.) The court continued:
Id.
$75,000.
plaintiff of $5,000 in compensatory damages and $295,000 in punitive damages (reduced from the jury =s $1 million punitive damages award because of the cap). The court rejected the defendant =s argument that it never had notice of such an exposure to punitive damages:
Id. at 1272. The court rejected the defendant =s argument that the punitive damages were excessive because they were an unreasonable multiple of the compensatory damages:
Id. at 1272–73. The court emphasized the purpose of punitive damages in punishing and deterring unlawful conduct. AIn this respect, the wealth and size of the defendant are relevant considerations. . . . We agree with the district court that Equifax =s gross operating revenue of $1.8 billion in 1996 could be considered in levying a substantial punitive damages award. @ Id. at 1273. Finally, the court agreed with the Second Circuit and rejected the Seventh Circuit =s suggestion that the maximum award of punitive damages should be reserved for the most egregious cases. AThe statutory cap is not the limit of a damages spectrum, within which the judge might recalibrate the award given by the jury. . . . To treat it as such would be to invade the province of the jury, something explicitly contrary to the purposes of 1981a. @ Id. (citations omitted).
and Washington State-law racial harassment plaintiff. The plaintiff was subjected to a frequent barrage of racist slurs and jokes, some of them in the presence of a member of management. The verdict affirmed by the court was for $5,612 in back pay, $30,000 in emotional-distress damages, and $1,000,000 in punitive damages. Id. at 801. The court rejected the defendant’s argument that its failure to stop the racial slurs and jokes was not reprehensible “because it was, at the end of the day, nothing more than ‘joking.’” It stated that the plaintiff made clear on the witness stand that he did not consider the language a joke. “The only African-American employee of about 140 at the U.S. Mat plant, he was subject to daily abuse featuring the word “nigger,” “perhaps the most offensive and inflammatory racial slur in English, . . . a word expressive of racial hatred and bigotry.” Merriam-Webster’s Collegiate Dictionary 784 (10th ed.1993).” Id. at 817. The court observed that the jury’s verdict did not consider it a laughing matter “and we do not hesitate before agreeing.” Id. The court also rejected the defendant’s argument that the plaintiff had not complained, because the plant official who was the company’s “proxy” for receiving complaints observed the harassment and did nothing to stop it. Id. at 817–18. The court recognized that verbal slurs and jokes are not as serious as actual violence or the threat of violence, but held that “the highly offensive language directed at Swinton, coupled by the abject failure of Potomac to combat the harassment, constitutes highly reprehensible conduct justifying a significant punitive damages award.” Id. at 818. The court combined the back pay and compensatory damages awards to obtain a total compensatory damages package of $35,600, and calculated the ratio of punitive to compensatory damages as 28 to 1. The court stated: “This is precisely the type of case posited by the Court in BMW—the low award of compensatory damages supports a higher ratio of punitive damages because of ‘particularly egregious’ acts and ‘noneconomic harm that might have been difficult to determine.’” Id. The court emphasized that plaintiff’s counsel warned the jury not to go “hog wild,” had stated that an award of ten million dollars would be wrong, and that they should be more moderate. In light of these admonitions, the court took the verdict of one million dollars as a verdict calculated to punish unlawful conduct and deter its repetition. Id. at 819. The court next turned to the magnitude of the harm, and stated: Id. The court surveyed the decisions of other Circuits and held that, in light of the low compensatory award, the ratio of 28 to 1 was constitutionally permissible. Id. at 819–20. Finally, the court refused to reduce the award in light of the analogous cap on damages for Title VII violations. While the Title VII cap weighs in favor of a reduction, “we also hasten to add that Congress has not seen fit to impose any recovery caps in cases under § 1981 (or § 1983), although it has had ample opportunity to do so since the 1991 amendments to Title VII.” Id. at 820.
defendant on punitive damages, and remanded the case for trial. The court stated that, inasmuch as the corporate parent and its subsidiary were both liable, the caps should be based on their aggregate number of employees.
by violations of the Pregnancy Discrimination Act. The court held that the awards were not disproportionate to the affected women =s actual damages:
Id. at 616 (footnote discussing the effect of including front pay in Aactual damages @ omitted). The court drew attention to the Supreme Court =s statement in BMW v. Gore that the punitive damages should be compared to actual and potential damages, and pointed out that, were it not for the lawsuit, the defendant would have continued to harm pregnant women by its violations of the PDA. Id.
compensatory damages and $285,000 in punitive damages (reduced from $624,000, to comply with the cap) against the Title VII defendants, U-Haul International and its wholly-owned U- Haul Co. of Maine. The plaintiff was fired from her job of Customer Service Representative two weeks after she had been hired. The manager told her that her only trouble was that she sat when she had to pee. The court held that, although there were no civil or criminal penalties, the defendants had adequate notice of the potential consequences of their conduct by virtue of the statutory caps on damages. Id. at 673–74. The court noted that the Supreme Court has directed courts to accord substantial deference to legislative judgments on appropriate sanctions, and continued: AAccordingly, a punitive damages award that comports with a statutory cap provides strong evidence that a defendant =s due process rights have not been violated. @ Id. at 673 (citation omitted).
by violations of the Pregnancy Discrimination Act, stating: Awe agree with the Seventh Circuit that where a plaintiff suffers an adverse employment action that >was not an isolated instance of discrimination by a single supervisor, but the predictable outcome of not-so-secret company practice, = such that the defendant >maintained a policy of intentional disregard for the statutory rights of its female employees, we cannot say the maximum punitive damage award was inappropriate. = @ The court rejected the suggestion of the Seventh Circuit, and adopted that of the Second and Tenth Circuits, with respect to awards of punitive damages within the caps:
Id. at 617 (footnote omitted).
other manner discriminate against any employee because such employee has filed any complaint or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding. . . .” Sec. 216(b) of the Act was amended in 1977 to state that employers that violate § 215(a)(3) “shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatements, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.” Pub. L. No. 95-151, § 10(a), 91 Stat. 1245, 1252 (1977). 29 U.S.C. § 626(b) in the ADEA provides in part: “Any act prohibited under section 623 of this title shall be deemed to be a prohibited act under section 215 of this title.” Thus, both provisions can apply to retaliation in violation of the ADEA.
v. Adams Elevator Equipment Co., 941 F.2d 543, 551, 56 FEP Cases 1270 (7th Cir. 1991), the ADEA, Moskowitz v. Trustees of Purdue University, 5 F.3d 279, 283, 64 FEP Cases 1013 (7th Cir. 1993), and the FLSA, Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1226, 2 WH Cases 2d 993 (7th Cir. 1995).
“persuasive,” but held that there was no need to decide the availability of punitive damages under § 215(a)(3) because defendant had waived the issue by failing to preserve it below. The retaliation award for the six plaintiffs was substantial:
Id. at 1002.
which are governed by separate statutory provisions that have no counterpart to § 215(a)(3).
held that punitive damages are not authorized by § 215(a)(3). Judge Carnes concurred. Id. at 939 –40.
__ U.S. __, 122 S. Ct. 2583, 153 L. Ed. 2d 773 (2002) , held that the caps on damages in the Civil Rights Act of 1991 are constitutional. However, the court refused to apply the caps to plaintiff’s § 1981 and State-law claims. Id. at 803–04. The court affirmed the lower court’s decision to allocate all of the plaintiff’s compensatory damages to her State-law claim so that they would not count under the caps. It explained:
Id. at 801–02. The full citation to Martini is Martini v. Federal National Mortgage Ass’n , 178 F.3d 1336, 1349, 80 FEP Cases 1 (D.C. Cir. 1999), cert. dismissed, 528 U.S. 1147 (2000). The full citation to Kimzey is Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 73 FEP Cases 87 (8th Cir. 1997).
“catalyst” theory as a basis for entitlement to a fee award under 42 U.S.C. § 1988. The court held that obtaining relief pursuant to a court order or approval of a settlement that changes the legal relationship of the parties is essential requirement for “prevailing party” status and thus for entitlement to fees under the wording of this statute, which parallels the wording of many fee- award provisions. The court rejected as far-fetched petitioners’ argument that defendants would avoid their fee obligations by voluntarily tendering full relief, and thus mooting the action before judgment. “And petitioners’ fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant’s change in conduct will not moot the case. Even then, it is not clear how often courts will find a case mooted: ‘It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice’ unless it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Id. at 1842 – 43.
plaintiffs: “The district court awarded plaintiffs over $238,000 in attorneys fees and costs. He denied a request for additional fees arising out of hundreds of hours of long-distance telephone calls. He said he could not assess the reasonableness of the request because counsel refused to describe in general terms the substance of the calls. We fail to see an abuse of discretion in this decision.”
was unreasonable to require it to pay for two attorneys at depositions, because the workers’ compensation and ADA issues were intertwined, and it was reasonable to have attorneys specializing in workers’ compensation and fair-employment litigation each present at the depositions. “Titan further contends that the district court should have reduced the attorneys’ fees by 50% because Iowa law does not provide for an award of attorneys’ fees in a wrongful termination case. The district court agreed in part and reduced the amount of fees Webner sought but by only 10%. The court concluded that the evidence Webner submitted was interrelated and overlapped between the two claims, therefore further reduction was not appropriate.” The court of appeals agreed, stating that the most important factor is that the plaintiff won.
reversed the award of attorneys’ fees to the defendant. The court held that the sanction of a fee award to the defendant was improper where the plaintiff proceeded in good faith to trial, based on the same evidence that had held the court on an earlier appeal to reverse the grant of summary judgment to the defendant. There were no intervening factors that would have deprived of its good-faith character a decision to proceed to good faith on a claim previously adjudged trialworthy. The court rejected the lower court’s distinction between summary judgment and trial, to the effect that on summary judgment a defendant is required to prove a negative and at trial the plaintiff is required to prove a positive. The court cited Reeves and held that the standards for summary judgment and judgment as a matter of law were the same.
defendant and its counsel under 28 U.S.C. § 1927 and the court’s inherent power for knowing and reckless violation of Rule 412 and having misled the court about the testimony after plaintiff’s counsel had made an anticipatory objection. The court also affirmed the sanction of $5,000 in emotional-distress damages for the plaintiff because of the emotional stress caused by the humiliation of hearing this evidence come in. The nature of the violation is discussed above in the section on Rule 412. The court held that the lower court “clearly erred in stopping short of explicitly finding that the defendant’s lawyers acted in bad faith,” and that the violation was “knowing and intentional.” Id. at 1106–07. The court held that § 1927 was satisfied because the defense counsel’s misconduct caused a mistrial and a sanctions proceeding, and thus multiplied proceedings, and because the lower court’s finding of recklessness was sufficient to support sanctions under the statute. Id. at 1107. The court stated that § 1927 sanctions could also be based on the frivolous nature of the defendant’s Rule 412 argument. Id. at 1107 n.8. Turning to the second award, the court stated: “Here, regardless of whether defense counsel’s behavior constituted bad faith per se, we readily find that counsel’s reckless and knowing conduct in this case was tantamount to bad faith and therefore sanctionable under the court’s inherent power.” Id. at 1108. The court held that the fees and emotional-distress damages assessed by the lower court were proper sanctions. Id. at 1108–09. Important Information From The Association of
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